15 May 2020
Kia ora friends
As I write this, we are in the first day of Level 2 and this morning I had a sit-down coffee in a café, and purchased a jumper. It was a special morning!
I am feeling a bit like character no. 4 in the cartoon on this page. I have been calling my hairdresser frequently, first begging to adopt him, and then agreeing to go to the salon at whatever time of the day he could see me.
Monday will bring the challenge of the office. the first challenge will be access. The Government are recommending using the stairs. I’m on level 22. It will take me at least 40 mins to get up them and then I will need a shower and some form of resuscitation.
My other option is one of the 6 lifts that have been marked to take only 4 people. That’s a maximum of 24 people at a time. The building has 28 floors with 8 in car parking, so that is 20 occupied floors with say 70-100 per floor - an average of 85 per floor. That’s 1700 people. So, 70 lift cycles will be needed to move them around. The stairs look like a faster option.
This new normal is everywhere, in shops where you have to sign in; in restaurants where you must be 2 m from your neighbour and in workplaces where social distancing is still very important. Of course, not in bars as they are closed. In fact, following the PM’s announcement about level 2, the media contacted me for comment on the closure of bars. However, before I could impart any great wisdom, the reporter texted me back with the message “Hi Kate just realised you are legal bar and not drinking bars!!! Sorry!”.
It is not comfortable, this new normal, and it makes me feel uncertain and concerned about the future. How long will we be at level 2? And how long will we need to keep our borders closed?
Recently an NZ expert in viral immunology said that while he was buoyed at the pace of global efforts to find a vaccine, he still expected this to take a long time and we have to ensure that the vaccine will be safe for an entire population to use. He did, however, believe that making an effective vaccine for this novel coronavirus is possible. The Mayo Clinic agrees it could take some years. This is in contrast to that other expert on vaccines, British Prime Minister Boris Johnson, who says we may never develop one.
So,the reality is that we are likely to have to develop a whole new mindset and change our social patterns forever. We are even now thinking about how it will change the way we conduct court work. Handing up of documents, once a routine part of any criminal or civil trial, is now strictly forbidden. Under Level 2 protocols will they need to be scanned or emailed to the registrar to give to the judge. I have heard of a civil family court hearing where counsel were ordered to produce a new bundle of documents and exhibits for each witness. There were 6 witnesses, which made the paper mountain enormous.
The NZBA consulted widely with you on the draft Level 2 protocols, which the judicial steering group provided to us in draft. On Tuesday we had a meeting with members of the professional steering group, and Justice Miller and the Chief District Court Judge. The Chief District Court Judge went through the changes which the group had made to the protocols because of the feedback received from the profession. I was heartened by this because it illustrated how the judiciary is recognising the valuable insights the bar can provide into the operation of the courts.
I was very concerned this week by the provisions of the Health Act Order Bill, which included increased powers for the police to enter homes, premises and marae (although Marae were later removed when the bill went to Parliament) without a warrant to enforce the provisions of the public health response – in other words, to ensure that public gatherings of more than 10 were not taking place.
Very few people were consulted in advance about this legislation and in face, we only had 30 minutes to pull together a response. Following consultation with other organisations, we sent in an urgent submission that we opposed the passing of this provision under urgency and with little or no consideration. There was significant scope for potential breaches of human rights and rights in respect of search and assembly/freedom of expression and movement.
The website of Parliament which shows the debate before the third reading records the AG saying that changes had been made to the bill because of the feedback he had received. Our view was that the widening of the police powers, for a period of up to two years was a great concern and an unacceptable extension of police powers. These powers were passed into law, but the powers are only now available for 90 days and must come back before parliament.
The president of the Bar in the UK has reported that the Lord Chief Justice of the United Kingdom has approved the reopening of jury trials in Britain. The first jury trials will be held next week in larger centres. Jury numbers will remain at 12, but there will be social distancing for juries and juries will be sequestered in large unused courtrooms and kept apart as much as possible from each other. The resumption of jury trials is an important step in the return to the full operation of the Courts and has been welcomed by the Bar.
New Zealand will not resume jury trials before 31 July with jury summons being sent out in mid-June at the earliest. I am concerned that the courts will be inundated as we return to a more normal operation of the Courts. I believe that very few (if any) Judge alone trials have proceeded in level 3 – so the Courts, will be very busy as they work to reduce the backlog.
A working group (of which we are part) has been established which aims to look at what can be done to improve the progress of criminal cases through the court system. I hope that they can come up with some solutions which will improve the statistics which show the low number of trials which actually proceed when they are set down.
Now that we have reached the halcyon times of level 2 it is likely that you will not hear from me as often. So, I have been reflecting on those who have ( in my opinion) shown themselves to true leaders during this difficult time. My scale is the chocolate fish scale – 1 fish is not bad; 2 fish - good; 3 fish excellent and 4 fish – knocking it out of the water.
- I would like to acknowledge the incredible work done by the New Zealand Law Society, in particular the President, Tiana Epati and the hardworking Bronwyn Jones. The NZLS and its staff have worked tirelessly to respond to issues arising in during the lockdown and have constantly produced quality product. Bronwyn tragically lost her father during level 4 and yet she continued to work. A shout out and at least three chocolate fish.
- The judiciary that I have been dealing with have been extraordinary. The Chief District Court Judge, Justice Miller, the Chief Justice, the Chief High Court Judge have been working very hard to try and make the courts fit for purpose in the time of the pandemic. I am not sure that any of us have appreciated how much work went into building, almost from scratch, a Virtual Meeting room system and now to work to make Microsoft Teams and SharePoint fit for use by the Courts (and this will give us all a much-improved document management system.) The Chief Justice and Chief District Court Judge have been going into the Courts to see how the courts are actually working. I know that Justice Thomas was in the Wellington courts. There is nothing as heartening for counsel as seeing those who run our courts actually seeing the problems and then working to try and resolve them. Further, almost every issue that we have raised with them has been considered and dealt with. I thank them for their leadership at this difficult time. They get an appreciative clap from all of us and 4 chocolate fish to be split between them.
- The work done by the judiciary is supported by the Justice Department and the MOJ staff have stepped up to do whatever they can to assist with the smooth operation of the courts – from providing the IT support behind the VMR and Microsoft Teams to getting the PPE needed. I would like to thank Carl Crafar, the Chief Operating Office of the Justice Department and the Secretary of Justice, Andrew Kibblewhite, who have bent over backwards to make the Justice Department responsive and the courts safe places for counsel and lawyers and whanau to attend. They have also been in constant touch with the profession to see what they could do. A special and personal chocolate fish to Andrew who rang me ( and I know others) to see what he could do for us. I was tempted to say send wine but resisted the urge. A three chocolate fish effort and the grateful thanks of the NZBA.
- I would like to thank my colleagues on the professional liaison group Tiana Epati and Bronwyn Jones (NZLS); Len Anderson QC (CBA); Marie Dhyberg QC ( ADLS inc); Tania Sharkey ( PLA) , Marcia Murray (Te Hunga Rōia Māori o Aotearoa); and Chris Stevenson and Liz Hall ( the co-presidents of the Defence Lawyers association). I have enjoyed working with and have respected and learned from their different perspectives. As a result of my almost daily dealings with Len, Tiana, Chris, Liz, Marie and Tania I feel my criminal procedure skills have been immensely improved. In fact, I reckon I am almost fit to undertake my first plea in mitigation. It has been hard work and a lot of writing and every one of them deserve 4 fish each. But times are tough so I will allocate them a virtual 4 and an actual 1 fish.
- And finally, a big thanks needs to go to those who have supported you and me through this time. I could not have imagined facing this crisis without the support of Jacqui Thompson, our Executive Director and Lisa Mills, our Administrator and Events Co-ordinator. I don’t know whether Jacqui has had a weekend off in 8 weeks and short of tying her down, I don’t know quite how I am going to get her to slow down. My PA ( another 4-star individual) said I should cut off her internet. Tempting but maybe a touch illegal? Jacqui has been there for every one of us, she has been calm, she has been supportive, she has been creative and she has responded, written, made submissions, talked, endlessly Zoomed, and worked on putting together your comments on protocols tirelessly. I wonder if she does it in her sleep. Lisa has tirelessly helped members with their queries, registered them for virtual events and backed up Jacqui to the point that Jacqui (again, possibly illegally?) has declared she will not be signing off on leave for Lisa - ever. My grateful thanks and admiration. A 4 fish plus effort. Thank you.
- And to all of my council members: Paul Radich QC (who will take over from me in October), Jonathan Eaton QC, David O’Neill and Simon Foote QC, who are the Management Committee who help with day to day decisions, as well as my wider council – you are great people, you understand the hard work it takes to keep this voluntary organisation going, to make us relevant and to be there for the barristers of this great profession. I salute you all - I send aroha, I send thanks, I send best wishes and I send my hope for the future.
Kia Kotahi te hoe o te waka
to paddle as one
8 May 2020
Kia ora friends,
I want to update you on what we have been told so far about the likely operation of the Courts under Level 2. The NZBA and the other professional bodies all submitted to the Judicial Steering Group on what we would like to see as a minimum to protect all court users while allowing work to get back underway.
The protocols as attached reflect what the Government has announced about Level 2 - that it is a safer version of normal. They incorporate feedback from the profession and reflect our discussions with the Judicial Steering Group.
But I also want to share some of the discussions that we have had with the Steering Group.
The Ministry has progressed the use of Microsoft TEAMS. A trial using TEAMS in the court is running in the Hamilton District Court and in the Family Court in New Plymouth. Next week the High Court Civil Registry in Auckland will trial it. Justice Thomas advised that Justice Katz will be managing that for the High Court. We will liaise with her to see what assistance the bar can provide.
The representative group also raised concerns about the operation of the Hamilton District Court (a matter of overcrowding). The Chief District Court Judge confirmed this was being dealt with by the Executive Judge in Hamilton.
The Chief District Court Judge also wished practitioners to be aware that if there are specific issues with the operation of the court they need to be raised first with the Site Manager and then the Executive Liaison Judge in that area. It is only if these issues cannot be resolved should the issues be escalated to Steering Group. It is important to note that several practitioners have confirmed that they had raised these issues at a local level in Hamilton before escalating them.
If you do need to escalate a matter, please send me the details including the problem itself, who you spoke to about it, the response, and how long you have been waiting for a solution.
The Chief District Court Judge advised that in order to minimise/control numbers within courts necessary for social distancing, the court is bringing in a new requirement that support people must apply for permission to attend court. The Judge said that this is working quite informally at the moment through requests to security officers, who pass them onto the registry and then to the Judges. Ideally, this should be done in advance and counsel should liaise with the court to obtain that consent. Consent will depend upon space in the Court
The key message from the High Court is that counsel are expected to work together to try and agree any change to timetable orders and only come to the court if they cannot agree.
With respect to remote witness actions, the Chief High Court Judge suggested that counsel only call witnesses that are critically necessary for the case and to see if they can liaise to have other evidence accepted.
We discussed the management of documents during civil cases and the recommendation is that counsel liaise to confirm the electronic bundle protocols will be used for High Court hearings, to ensure efficient management of documents.
If you have any questions, thoughts or comments please do not hesitate to let us know. We look forward to hearing from you.
Kia Kotahi te hoe o te waka
to paddle as one.
5 May 2020
The beginning of level three last week brought the welcome return of the flat white, which really made my week! Other small pleasures have returned such as being able to get takeaway food and flowers. It does feel like some semblance of normality is returning.
This week I would like to hear from those in the Family Court and civil courts. The Chief District Court judges says that civil cases should be back on track in the District Court. Are there any issues? Are you finding that civil matters are progressing as you hoped? What about the Family Court?
Kia Kotahi te hoe o te waka
to paddle as one.
Kia Kotahi te hoe o te waka
to paddle as one.
26 April 2020
Kia ora koutou,
First, I must apologise for interrupting your ANZAC weekend. This is an important day as it gives us all a chance to acknowledge those who have served their country and to thank them for that service. I give thanks to those of you have served, and those in your families who have served.
However, I do want to give you some more information on what to expect on Tuesday when the courts “re-open”. And, in particular, I want to stress to you that this will NOT be business as usual.
Yesterday (Friday 24 April) we received a lot of feedback from you about your views on the new courts’ operating protocols. The issues were well thought through and the responses were measured. Thank you for the time you took to respond. It was very clear that your concerns were not just for your own welfare but for that of your clients and other court users and staff.
I met with the Presidents of the NZLS, CBA, ADLS, Te Hunga Rōia Māori o Aotearoa (THRM) and Pacific Lawyers Association (PLA). We all discussed what we did and did not know about the proposed arrangements. We shared the concerns you had sent to us. We were then joined by the Secretary for Justice, Andrew Kibblewhite, and the MOJ’s Chief Operating Officer Carl Crafar. I shared with them the summary of concerns from your emails to us.
We next met with the Judicial Steering Group. Like the MOJ, they appreciated your feedback, but they are confident that they have made proper plans for security, cleanliness and social distancing and security. While everyone acknowledged the practical difficulties in holding Judge Alone Trials (JATs), the view was that some cases can be heard safely. Priority will be given to defendants in custody.
We have been assured that there will be careful monitoring. The presidents of the NZBA, CBA, NZLS, THRM and PLA will meet again with the Steering Group on Thursday at 9am. So, we need you to keep sending through your feedback on how it is going as it happens- so we can pass this onto the Group. If something comes up that needs an urgent solution, do not hesitate to raise it at the time with the courts, but please let us know as well.
The Courts want to try and get as such of their business done as possible using the remote access systems that are in place. They also stressed that the situation will be different on a court to court basis depending on the facilities of that Court.
More information about court arrangements
The Courts will have private security staff to ensure social distancing with the courts. Entry will be limited to a “one in, one out” basis and will be controlled through a contact register.
Counsel are asked to arrive early and to go to the head of the queue for priority entrance. You must have your letter from the NZLS (written by Tiana Epati) identifying you as a lawyer attending court. Please remember not to hand the letter to anyone – hold it up so it can be read. Another point to remember is that you must not hand up any items to the court.
All documents are to be filed electronically. There has been some confusion by the announcement of the Courts of NZ twitter account that "Drop-box facilities will be available for people to file in person in the District Court while public counters are closed during COVID-19 Alert Level 3". This is not referring to the cloud storage service. There will be a physical box at the District Court for you to file in person. Please also refer back to the recent courts' webinar where Justice Miller described the filing methods.
On entry, you will still have to use the scanners. The trays are not wiped after each use, so please ask for the disinfectant wipes to wipe your belongings when you collect them (it may be wise for you to have a pack of your own – just in case!). Masks and gloves will be available.
A major concern was how to conduct interviews in a way that observed social distancing and hygiene requirements. In addition to using the existing interview rooms, counsel may be able to request the use of an empty courtroom (if there is one available) for interviews. Lawyers will be given disinfectant wipes to clean surfaces (see more below).
What can you do?
Be prepared. Over the past few weeks, we learnt a few things about safety, and you should think about this before going to Court. I am going to however set out a few suggestions for you.
Washing our hands may be the best solution but equally, we do not know how often the bathrooms will be cleaned in the courts. There should be hand sanitiser and cleaning products available in Courts. But we don’t know exactly how this will work, so consider taking your own hand sanitiser (preferably with a high percentage of alcohol).
Do not touch anyone else’s belongings. Do not let anyone touch your belongings – if someone grabs a pen when you are not looking, let them keep it and have a spare available for yourself. Alternatively, sanitise your belongings.
In all areas of the court, wipe down all benches and surfaces before you sit at them. Remember the arms of the chairs. Take some gloves to do this if you have any – otherwise clean your hands afterwards. It is better to do it yourself because that way you can control your environment. Do not rely on someone having done it for you.
Some of this is about how you feel on a psychological level. For example, if you want to, when you get home or back to your office, change your clothes and wash your hands. If it makes you feel better, do it.
Above all else, remember the COVID 19 Healthline exists to give you help and information. If you have any concerns about your health or wellbeing, call 0800 358 5453.
And as a general reminder that if you are outside of the court’s precinct and you believe that someone is behaving in a way that is contrary to the applicable Alert Level, you can fill in a Covid 19 breach form or call 105 – the police’s non-urgent phone line.
I want to stress how important it is that we communicate quickly and clearly about things that are not working. This is essential for the monitoring process. Even if you have resolved an issue, let us know about it in case it is happening elsewhere. Your solution may work for someone else.
Some of you have commented on the official communications, the information presented and the timing, as well as a perceived lack of advance consultation with the profession. In fairness to those who are making the decisions, this has been a fast-moving situation and has required a lot of up-front leadership, which I believe that the judiciary is providing. They did not always have time to consult with us before plans were made and the consultation often had to be post-event. But they have tried very hard to consult and have done a lot of work recently, thinking about how to protect everyone while still delivering justice.
I hope that this message has provided more information, although I suspect it is not what many of you wanted. However, the key message is to let us know what is happening as it happens. We will be staying in touch with the MOJ and Steering Group and as I say, will be meeting with them as well on Thursday.
Enjoy the rest of your weekend, and stay safe.
Kia Kotahi te hoe o te waka
to paddle as one.
20 April 2020
Kia ora koutou,
Last week I wrote to you that we are all experiencing the pandemic but in multiple and varied ways. For some there is the horror of job loss and financial stress including businesses failing. For others there is the worry about our children locked in our houses with their only contact with friends being online, the worry about elderly parents or grandparents, fears for our adult children who don’t live with us and their physical safety and the safety of their jobs. In the wider sense, we all worry about the impact on our businesses, the NZ economy and our ability to pay our staff and keep afloat.
I have been thinking this weekend about our responses to traumatic events and changes. There were several triggers for this train of thought. One was an excellent article written by one of our members, who described her return to work after an accident had sidelined her with a concussion (we will be publishing it in our issue of At the Bar in May). She was drawing parallels between that event and returning to work post-COVID 19 lockdown. It resonated with me. How would I react? What would my response be?
As lawyers, we are used to seeing how people deal with the issues that bring them into our offices. There is no one way of reacting. On the surface, some are steadfast and outwardly courageous, many are deeply anxious about the litigation and the impact on their lives, and some simply refuse to be part of the solution. For them, the problem is always someone else’s fault – and there are some that just cannot let go of the conflict.
Some clients you find likable, sensible and reasonable and others seem the opposite. Our reaction to clients is as much about our personality and our lives as theirs. Do we understand their reaction? Is it how we would react?
I think that most of us deeply mourn the “life before Covid” and a life where the simple pleasures which make daily life more enjoyable ( the coffee, the chats with friends, that cheese scone) are removed and our work now needs to be done in far from ideal circumstances.
How we deal with this is as individual as we are. Our response is tempered by our life experience and our basic personalities. Living with a doctor and his colleagues whose daily work involves death shows me that for them, humour is a way of making the unpalatable bearable. You only have to see the jokes coming through on Facebook to know that black humour is alive and well during the Covid 19 epidemic.
I have always thought I was a pretty positive person. But this week I received some feedback from an old friend that my post last week was too Pollyannaish and was not reflecting the real pain that people are feeling. I have spent a few days thinking about this, again considering what is an appropriate response to this crisis. Certainly, a failure to recognize the pain is not my intention. The pain is real. I see you and I hear you. I have read your emails and talked to the team at the NZBA about how we can help with real solutions.
For me, the only way to deal with this reality is with action, retaining social contact and mocking myself and my ineptitudes. I also asked others what they thought and was comforted by the rather abrupt response from someone who said to me “Oh FFS” – but she said it in actual words – “what possible use would you be in this situation if you went around beating your chest and crying woe, woe, woe? Do what you do best and get on with trying to solve problems.”
I have found comfort and purpose in being involved on behalf of NZBA members in working with the Courts, with the MOJ and the NZLS. We listen to what you tell us about the problems in getting our Courts going and work out what we can do. I have enjoyed speaking to Tiana Epati and Bronwyn Jones from the NZLS, Len Anderson QC from the CBA, Marie Dyhrberg QC from the ADLS and our own Jacqui Thompson every day for the last three weeks at 2 pm. The shared problems often lead to solutions and the warmth in the group is palpable. The routine is the same at each meeting; understand the problem, search for solutions, and then try your damnedest to fix it.
In the UK they are speaking of the blitz spirit where you pull together to make do, mend and make it work. I have been privileged to witness this spirit in the very hard work that the Chief Justice, the Judicial Steering Group, the rest of the judiciary and the MOJ staff are putting into getting this"justice ship" back on course. Access to our courts is vitally important to them and they have achieved almost impossible things in a very short time. The way the judicial steering group and the MOJ worked together to build a VMR system is 2 weeks is impressive.
The seminar the NZLS hosted last Friday illustrated this work and the dedication to the administration of justice of all involved. They are showing true leadership and I congratulate them. There are undoubtedly frustrations in doing our work and I experience them as much as anyone. But I have the privilege of trying to work to resolve them.
I can’t control Covid 19 or the economy. I can only control my response. And I am very thankful that I have colleagues who have made that a much easier job. They have supported me, encouraged me and been kind to me.
If you don’t feel optimistic, if you feel hopeless, that is fine. We are different with different formative experiences. But please, reach out. There is nothing wrong with borrowing someone else’s positivity for a little while. Pollyanna or not, I do see light in this tunnel and that light is being cast by you my friends. We are truly in this waka together – he waka eke noa.
Nga Mihi my friends- keep talking to us and tell us what we can do to help you.
16 April 2020
Kia ora my friends
I hope that you all had a happy and restful time over Easter. My cake went well (thanks to all who enquired) and Dr Tim had a peaceful-ish time on call. But for the first time, on Easter Monday boredom struck. I walked, yogaed (is there such a word?), cooked and read all the papers I could access, and it was still only 2pm.
I know that the down time is good for me but enforced leisure is a big adjustment. I am sure it is the same for many of us. Eventually I went into my home office and tidied, dusted and organised and made a “To Do” list for this week. Satisfying. Very satisfying. But not a game changer.
One of the things I did do over Easter was to read the amendments made by the Rules Committee to the High Court Rules. I am on the Rules Committee, which is a great privilege, and I want to thank the team from the NZBA who managed to review the draft rules and get them back to the Committee within 24 hours.
Thank you all for your hard work. It was very pleasing too to see the positive comments made by the Chair of the committee about the great work done by the NZBA in responding to the draft. It gives me such a buzz when the work we do (and many many of you contribute to this work) is recognised.
Some members did express concern that the Amendment Rules do not seem to embrace opening the Courts to a wider range of cases. I can reassure you that the amended Rules are just tools to give the courts more flexibility to deal with the issues which might arise in level 4 and level 3 (and maybe even level 2).
The next question is, of course, what will level 3 look like? Today the Prime Minister gave us a glimpse of what it might entail. Her key message was that financial modelling from Treasury shows that we are better to spend longer in level 4 and then 3, rather than move into a level 2 stage too early.
I am pleased that we may have access to more “normal” services albeit online although cafes; restaurants and bars will remain closed, but my mother will be thrilled that she will be able to get takeout! I however deeply saddened that my little darling will not be returning to school. Only those who are year 10 or below will return at alert level 3 and even then, most are encouraged to stay at home.
On 8 April the Chief Justice wrote to the profession and looked ahead to how the courts might operate at a lower alert level. In particular she said that the heads of bench were agreed that the courts should function to the fullest extent they safely could, in performance of their constitutional role. She was anxious to ensure that the backlog of cases that accrues over this period of limited operation did not overwhelm the courts, leading to delay and injustice. In the same letter she noted that the suspension of jury trials would continue until Friday 31 July, given the lead in period required for summonsing jurors.
We can speculate about possibilities. In the civil courts witness actions may not happen until our courts open more fully but it is also possible that some witnesses will appear by videoconferencing. We do know that our judges are committed to getting cases dealt with as fast as possible.
What is clear is that technology is likely to remain key to ensuring that our work goes on and we can service clients. I want to thank our Technology Committee which has engaged with the Judicial Steering Group to discuss the best technological solutions for virtual hearings in the future. We are very lucky to have Dean Tobin (Chair), Clive Elliott QC, Phillip Cornegé, Felix Geiringer, Josh McBride and Tim Rainey on this committee. They are all very familiar with electronic litigation technologies and are enthusiastic about the possibilities for the profession.
The committee is keen to ensure that members can take advantage of these possibilities without feeling undue stress. We know that the courts have decided to move towards using Microsoft Teams and SharePoint. There will be a gradual introduction with, we understand, priority being given to the Family and District Courts. There are still some issues to resolve and we would ask practitioners to be patient.
In the interim, our team is going to run some training initiatives for practitioners. We are going to show you what it looks like to run an online hearing. These recordings will be available free of charge on our website.
On Friday there will be a webinar on COVID-19 The operation of the Courts in Level 4 and beyond at 2pm on Friday. In that seminar you will hear from the Chair of the Judicial Steering Committee Justice Miller, the Chief Justice, the Chief High Court Judge, the Chief High Court Judge Designate; the Chief District Court Judge and the Chief Family Court Judge. Hopefully this will give us more information about what life as a court lawyer will look like under Level 3 and maybe even level 2. For more information go to https://www.lawyerseducation.co.nz/shop/Live+Webinars+2020/20HDJ.html
I have been thinking about and reading about the impact of Covid 19 and the lockdown measures that almost all governments in the world have put in place. There are very interesting and disturbing issues about equality, access to services and access to justice which are now; as some of the initial panic has passed, becoming more concerning. I read an article in the Times about the inequality of the impact of the virus on the British people.
This is equally true in New Zealand. While the virus itself does not discriminate; those who are paid the least, and who have either lost their job or have their salary massively reduced are the most impacted. Working from home is a luxury for the well or better paid. Having space to get outside in a garden or even a balcony is also denied to many. Overcrowding can lead to a greater risk of catching the virus. Lack of access to a computer for home schooling or working penalises those without them and their children, and financial stresses magnify anxiety and fear.
I fear that these problems are unlikely to vanish completely when we resume a more normal life and we should be thinking of our response as a society. I know that as lawyers we will see the fallout in the form of redundancies, increasing divorce and domestic violence, insolvency, and maybe an increased crime rate. These are issues which we will need to debate and work together to try and alleviate.
I was proud of the leadership shown by the Prime Minister, Ministers and the heads of government departments in taking a 20% pay cut. If I was not self employed and already experiencing this inevitable drop in income anyway I would be doing this too! But what I can do is to donate my legal skills to do pro bono work and low bono work in the form of legal aid. I fear our skills will be needed more than ever in the post covid world.
Nga Mihi my friends- keep talking to us and tell us what we can do to help you.
Kia Kotahi te hoe o te waka
to paddle as one.
9 April 2020
I can’t quite believe that it is Easter. It seems like I have been trying to run my practice remotely and juggle my parental responsibilities and do a little for the NZBA forever!
Time has ceased to have real meaning, but I am very much looking forward to my Easter holiday. Packing will be light, and the traffic non-existent – because this year I’m having a "staycation". I’m also going to be celebrating my daughter’s birthday in lockdown. She was planning a big party but now will be having a dinner for 4 at home with her brother and parents. It will be just as good as a party with her friends, I’m sure. I’m also going to make a cake. One of the solicitors I work with gave me a recipe from her successful Hattie’s cake business and I shall hope for the best!
I want to say a few words about some of the progress that has been made by the judiciary in getting to a position where we can have more “non-essential” legal work done by the Courts. As you know, we wrote to the Chief Justice last week to ask about the progression of civil cases. You will have seen the letter to the profession that was sent out by the CJ last night. So this is good news.
This morning the presidents of the NZBA, ADLS, CBA, NZLS met (on VMR) with the Chief Justice, Chief District Court Judge and Justice Miller. I can tell you all that the judiciary have been working very hard to overcome some of the technical issues that they have faced with trying to run the Court’s remotely. They want to get civil work pushed out to judges and Associate Judges who are still working but from home – but there has simply not been the resource in the Registry to allow this to happen.
The judiciary is working very hard to expedite this. We will have more news on this front after Easter. There is also going to be a webinar with the judiciary next Friday so that you can all ask questions about the issues and progress. The NZLS will send this notice out today. Please join the webinar and send in your questions in advance. Keep sending us your comments, thoughts and concerns and we will feed them on to the steering group.
My husband, Tim, will be on call this Easter. I think we all hope that it is not busy and that the number of very sick with Covid-19 remains small. I am so grateful for all those at the frontline - the health workers, the duty lawyers, the police and the supermarket staff. They all work under incredibly difficult conditions and at considerable risk. I am clapping for them all.
And, of course, we cannot forget the Easter Bunny, who not only has to face the risk of Covid 19, but is working extra hard to sanitise and deliver eggs. I read a comment on Facebook by a very stressed mum who said that when she heard Prime Minister Adern announced that the Easter Bunny and the Tooth Fairy were essential workers, she started to cry. I think that many of us know that feeling.
So on behalf of the Council and Secretariat of the New Zealand Bar Association, I would like to wish all those who celebrate it a very happy and safe Easter. If you don’t celebrate Easter in any form, I wish you all peace and safety.
Ngā mihi o te Aranga.
Kia Kotahi te hoe o te waka
to paddle as one.
6 April 2020
Kia ora koutou,
I went for a walk on Thursday 2 April and thought “oh fantastic I have survived two weeks in lockdown”. Imagine my horror when I got back and realised that in fact, it was only a week! And yet later that day, after I returned home from the supermarket, I felt very relieved to be back in the safety of my home, while obsessively washing down and cleaning everything that I had bought, or touched, including car keys, phone, eftpos card, etc.
What a weird world we live in at the moment; fear and loneliness and an obsession with hand washing mixed in an unhealthy soup. Over the weekend after I went to two “house parties” in a row I felt the same kind of social exhaustion I would have felt from attending two actual parties. Solitude seemed very desirable . I suspect it will be like this for a while and may become the new normal.
The papers are full of death and sadness and articles on “what to wear when working at home”- answer: business on top and fun on the bottom (tracksuits)! I have ordered some more loungewear to wear at home but of course, it cannot be delivered! Life at home with the bubblees is not all plain sailing either - we have exams online at the moment. I am pretty good on organisational structures of business and government control of economies - better than the child I fear). I have a sick husband who we are all avoiding (I think it’s a tummy bug ☹) and a bored daughter who just wants to be back finishing her med degree. Chaos often reigns.
I have also been reading in The Times about the online courts in England and how they are working and then Lord Sumption’s piece on why lockdown is a bad idea - interesting and thought-provoking...
One thing that this virus has thrown up is the significant lack of capital expenditure on IT equipment ( or indeed much) in our Courts. We are a small nation but we should be able to have a proper e-filing system and easy access to technology and computers for our judges and court staff so that our justice system doesn’t have to come to a shuddering halt when we can no longer meet face to face. Yet I can only commend the hard work that the judiciary and the Court staff and the Ministry of Justice have been putting in to try and set up a new system- allowing essential justice to be conducted remotely. I congratulate them all – they have been tireless and innovative.
Being in court, being seen and heard by the judge are vitally important and technology can be no substitute for that experience. But in most circumstances, technology is a better option than no hearing at all. Justice must go on –and it has been but with some teething problems. Post-Covid the NZBA will be advocating strongly, as I am sure will all the other legal organisations, for the government to consider a significant capital investment in our Courts to bring us up to a standard where we can easily enable remote access for judges, counsel, court staff and clients in the future.
But right now we can all do our bit to help. The NZBA has been working with the NZLS to set up a pro bono scheme with Community Law Centres and if you have an hour or two to spare we ask you to sign up to assist those who need urgent legal advice. Then we need to give feedback to the judicial steering group about what problems you are having in court and with filing and what is working. We are the front line and they don’t always know how it is working, so let us have your stories - good and bad - and we will pass them on.
We understand that the judiciary is working on putting some systems in place to enable court work on the papers to resume/continue. The message is that we should keep up with our timetables. If there is a default and agreement cannot be reached, a memorandum can be filed directed to the assigned Judge or Associate Judge. I sent a letter last week to the Chief Justice on this point. If you are interested here is a link.
We held an incredibly successful virtual happy hour meeting on stress management in which 35 people attended and I personally found it really interesting and beneficial, with lots of helpful tips. We will be adding these to our website and will let you know when they are available.
So keep writing to us and telling us how things are going. We love to hear from you and we would like to hear about ideas and volunteers for seminars on some practical topic about our current lockdown lives.
And finally – a joke to make us smile. This has some frightening parallels with my life!
Dear Dr Taylor - my hunkering in place is going well. This is what I have learned so far:
- Half of us are going to come out of this quarantine as amazing cooks. The other half will come out with a drinking problem.
- I used to spin that toilet paper like I was on Wheel of Fortune. Now I turn it like I'm cracking a safe.
- I need to practice social-distancing from the refrigerator.
- Still haven't decided where to go for Easter ----- The Living Room or The Bedroom
- PSA: every few days try your jeans on just to make sure they fit. Pajamas will have you believe all is well in the kingdom.
- Homeschooling is going well. 2 students suspended for fighting and 1 teacher fired for drinking on the job.
- I don't think anyone expected that when we changed the clocks we'd go from Standard Time to the Twilight Zone
- This morning I saw a neighbour talking to her cat. It was obvious she thought her cat understood her. I came into my house, told my dog..... we laughed a lot.
- Quarantine Day 5: Went to this restaurant called THE KITCHEN. You have to gather all the ingredients and make your own meal. I have no clue how this place is still in business.
- My body has absorbed so much soap and disinfectant lately that when I pee it cleans the toilet.
- Day 5 of Homeschooling: One of these little monsters called in a bomb threat.
- I'm so excited --- it's time to take out the garbage. What should I wear?
- I hope the weather is good tomorrow for my trip to Puerto Backyarda. I'm getting tired of Los Livingroom.
- Classified Ad: Single man with toilet paper seeks woman with hand sanitizer for good clean fun.
- Day 6 of Homeschooling: My child just said "I hope I don't have the same teacher next year".... I'm offended.
- Better 6 feet apart than 6 feet under.
Ngā mihi nui
Kia Kotahi te hoe o te waka
to paddle as one.
25 March 2020
Kia ora koutou,
As I began to write this note to you my initial thoughts were all about finding a joke to go with this note. Then I began to worry that I would not be able to find that great but not rude or inappropriate or insensitive joke. Then I was interrupted and when I began again it struck me that I was worrying about something incredibly trivial and normally something that I would never have given a thought to.
I have spent much of my day today and last week in Zoom meetings and I have noticed that same unusual anxiety amongst colleagues, clients and friends. We all seem to be feeling a low level of discomfort; a niggle; an inability to sleep, bad dreams and even irritability. You feel out of sorts; discombobulated and uncertain.
Some of it is getting used to this new life - and the abrupt curtailment of life as we knew it. But some is a genuine and appropriate worry for our health, those of our loved ones, the impact on our businesses and our mental health.
How many of you (as I have been doing) find you have exercised 2 or 3 times as much as you used to do every day? Who is eating much more, baking and then eating that baking very fast? (me, me and me). Whose no alcohol days are now no alcohol hours? (Yep me).
No one has lived through anything like this before. But this anxiety is an issue for all of us. In this week’s Virtual Happy Hour will be hosted by me; with Josh McBride; Damian Chesterman and Setareh Stienstra – we are going to talk about this. We are going to talk about ways of coping with the anxiety – which will be different for all of us- sport, yoga, meditation, podcasts, thought stopping, and even knitting will be discussed. Sadly, not shopping once a guaranteed stress relief for me.
But we would like to hear from you. Send me an email with your thoughts on what else we should cover and your wellbeing tips. It is free so come along, bring a drink and enjoy - and get some ideas which might ease the worries just a little.
I also had never thought (well why would I?) about the flow-on effects on many pieces of legislation when an epidemic notice is in place. The NZBA members did an excellent job of identifying the Acts in which changes might be needed to ease time limits and prevent harm. We sent this list to the NZLS to finalise. Their team worked very hard (and very well) to identify any Act which might be affected by the level 4 status. Following on from a joint meeting to review them, this list will be sent to the Ministry of Justice, which will consider whether amendments are needed.
I hope the Rules Committee’s proposed changes will be out this week and this will guide the profession. I know too the swearing of affidavits has become an exercise requiring much planning. The NZLS has released an opinion on the use of unsworn affidavits and s 24 of the Epidemic Preparedness Act which allows certain judges to amend Court rules as the judge thinks fit for each case.
I think our judges; Judicial Steering Group, the Rules Committee, the Chief Justice, the Heads of Bench and their respective teams have been doing a sterling job of figuring out the problem, getting help to come up with a solution and then implementing that solution. It is unfortunate but inevitable that some of the short-term solutions involve restrictions to the operation of the law that we would not normally countenance.
The Chief Justice was forced to close courts to the public – because of dangers to court staff, judges, counsel, court users and the public. No Chief Justice wants to do that, but this is a time when we have few or no choices. The need to self-isolate and to protect others trumped physical access to the public but ensuring full reporting is available so that justice continues to be seen to be done.
This is a balancing act, much like our lives at present. We balance our natural need for connection with other people against the sure knowledge that this connection could harm them or their families. We balance our freedom of movement against the need for containment of an organism that will kill thousands if left unchecked.
But what strikes me most is how much we have taken for granted living in a country that respects the rule of law and the freedoms that come with it. I would like to think that if we gain one thing from this time it will be a deeper understanding of that in future. Because, even if it is critical to curtail it now, losing it is no joke.
Ngā mihi nui
Kia Kotahi te hoe o te waka
to paddle as one.
25 March 2020
Kia ora koutou
Welcome to this wet Friday. The best thing that has happened today is that Nespresso delivered a box of 200 coffee capsules!
And equally good news is that while on my walk, I ran into the Hon. John Priestly QC and, at a suitable social distance, we chatted. I am pleased to say he and his wife are both well, but he was very sad that he could not get to Melbourne to see his new grandchild as planned.
It reminds us all that the most important thing is whanau and the longing that we feel for those who cannot be in our immediate bubble. Mind you, I admit that I am actually quite pleased that Dr Tim is going out everyday to work on the frontline - it is very good for our marriage.
You will have received an email on Thursday evening from the Law Society advising you of the Chief Justice's most recent letter to the profession. I am sure many of you will have felt considerable relief at the news that the judiciary has taken steps, under s 197 Criminal Procedure Act 2011, to exclude the public from courts.
I issued a media release supporting the judiciary's use of this power last night. I was told late in the day about reports of courthouses with people attending who had no business before the court but were supporters of those who did. I am deeply concerned about the welfare of court staff, lawyers and judicial officers.
It is important to note that the judiciary have not excluded support people entirely. They must seek permission in advance. As lawyers, we can all help to communicate this to those involved in the process.
Over the last few days, we have heard the word "unprecedented" in almost every context we can think of. But while s 197 and its predecessors have been used in several cases, it is difficult to imagine it has ever been applied to all courts at the same time! But please let me know if that is wrong!
Finally, you may be wondering why the NZBA did not email the release to you immediately. I know our members are under intense pressure and that you are receiving multiple emails. I have therefore decided that the best way forward, for the well-being of our members, is for the NZLS to send out urgent notifications. I know that not all NZLS notifications are relevant to barristers/litigators, so we will follow up with a member update and social media notifications in due course.
Rest assured, we will still try our best to keep you up to date. If you would prefer that we continue to email you ourselves, please email me. Our aim is to make your lives easier at this incredibly difficult (and very surreal) time.
We have very much appreciated the kind words you have sent to us about our communications with you (only one person called to suggest it was too much!). Thank you for your support and continue to send us your comments and thoughts.
I will be emailing you again early next week. I will also be hosting our next virtual happy hour on Wednesday at 5pm. Details will follow on Monday. Until then, take care and stay at home!
Ngā mihi nui
Kate Davenport QC
Kia Kotahi te hoe o te waka
to literally paddle as one.
27 March 2020
Kia ora koutou
The Judicial steering group have been discussing issues arising out of the Level 4 Covid 19 situation.
This is what we can tell you and what we would ask you to get back to us on.
The Prime Minister has issued an Epidemic Notice under the Epidemic Preparedness Act 2006- practitioners should be aware of the effect of s.24 of that Act on Court Rules- which gives individual judges the right to make specific changes to the rules for each case. We understand that Parliament has been asked to pass an urgent amendment to the Act so that District Court Judges can exercise this power.
However this section only applies to Court rules - so time limits under other Acts need separate legislation. Can practitioners please urgently feed back to us the specific sections in Acts which need may need amendment. This is only for sections for which there is no extension of time available. I stress that all we can do is to identify them and the decision as to whether to seek an amendment is for the Governor-General on advice of the Minister responsible for the relevant legislation, not the Courts. We will feed these back to the Ministry and the Courts.
Please can you get back to me and with anything else that you are finding difficult and/or on which you think clarification is required.
We are expecting updated protocols on the Courts of NZ website - so you should keep checking there- its the only source of truth. Please note the protocols on that website.
Further communication from the Chief Justice is expected as soon as she can get this out. There will also be an update from her on the Courts website.
Take care my friends.
Ngā mihi nui
Kate Davenport QC
23 March 2020
Kia ora koutou
What a difference a few hours makes. I wrote most of this note over the weekend when we were at level 2 and now, we are poised to shut down our economy for 4 weeks.
I went to my office this morning to do a conference call with the Rules Committee and as I left with everything I will need to work from home, I felt such a profound sense of grief. Life is unlikely to be the same for a long time.
This is a frightening time for us all. Our concerns are about our health, our older loved ones; our businesses and our ability to cope with self isolation. As a group we are gregarious and social isolation is hard.
I have just the same worries – my husband Tim is a respiratory physician at ADHB and will be on the front line of our medical response. But he is calm in the face of this huge threat and that calms me. My son (15) has been sent from school today and many of you will have read my fear of this! He knows that I know nothing about anything and acts accordingly. Murder and alcohol often feel like an appropriate response.
My daughter is a medical student and her future studies seems uncertain. My eldest son is in quarantine in Lyon and my daughter and her husband are working from home in their 50m apartment- but settling on a new house on Friday.
My parents are a healthy 79 and a frail 90. When the Prime Minister announced that the over 70’s ought to stay home on Saturday, my mother was at golf and said she would come home after the last 3 holes and a drink with her friends! She is unhappy about being stuck at home and feels lonely and bored. My best friend has a husband with a serious chronic illness, and she is terrified that he will catch COVID-19.
I think we all have similar issues. We feel fear and uncertainty for ourselves and our loved ones. What can we do? Well I think we can do more of what we are doing; working together as a community and helping and supporting each other.
I reached out on LinkedIn yesterday for assistance on how to work from home. I find I cannot avoid the lure of the fridge, online shopping and the housework (never usually at all appealing). I got a lot great advice which I will endeavour to apply. I’ll keep you posted on how I go.
We have had a great response from our bar care committee who have given us all some assistance on what technology we need to have to work easily at home. My small team and I trialled working from home last week and as a result I had to get a Windows based computer as my Mac wasn’t working too well with our office-based PC.
I can tell you that the Judicial Steering Group is working closely with the Rules Committee to make whatever changes are needed to the High Court Rules to allow remote access to the Courts – filing, fee payment and appearances. We may get a very short window to give feedback - and I have already circulated the draft to our committees.
Today at 2pm the New Zealand Law Society, Criminal Bar Association and the New Zealand Bar Association met and discussed both the consequences of today’s announcement and the clear feedback you have given us. We have sent a joint communication to the Chief Justice seeking clarity and a further response on court protocols. We will update you as soon as we have received a response.
I hope to give you links to the information that we may need about financial support from the Government as I know that many will be worried about the impact on our businesses. We will find out how to apply for the support and give you links to the pages.
We will feel the isolation I know, so try to organise virtual get togethers to keep our social connections going. We can just try things out and talk to each other about our problems. I thought about virtual peer support groups – somewhere where you can share your legal problems; and technical problems and get support- what do you think? I am getting such amazing feedback from you all and this makes me feel part of this great community- keep it up!
I also hope you can help each other- if you have work you cannot do then give it to another barrister and if you don’t know one, we can help. This might be a good time to enrol as a legal aid provider??
All suggestions welcome. Together we will muddle through.
But I can tell you what NOT to do. I rented the movie Contagion for the family to watch on Saturday night. This was a huge mistake. Far far too realistic (but with a much more vicious bug) and Saturday bedtime was spent trying to calm the anxiety I had induced. #badparenting!
Aroha to you all. Hope to hear from you.
20 March 2020
Kia ora koutou,
The New Zealand legal systems’ preparedness for Covid 19 is proceeding apace and I wanted to let you know of the conference call that the NZBA; NZLS and the CBA have just had with the Ministry of Justice (MOJ).
You will be receiving later today or on Monday a communication from the Chief Justice setting out the changes that will be made to the operation of the courts as they grapple with how to keep everyone safe and also to keep our courts open.
However, there are a few things that I can share with you now.
- The Judicial steering group and the Ministry of Justice and the Courts of New Zealand want practitioners to continue to talk to them about the concerns, problems and solutions for the issues we are all facing in the courts. However, they would like them channelled through the NZLS, NZBA and CBA. So please DO NOT contact the MOJ, or the judges directly. Please send all your thoughts directly to us. The NZLS and CBA will be asking the same of their members. The NZLS, ADLS, CBA and the NZBA will speak once a day and collate all your ideas and send them through in one document to the MOJ.
- The Courts and MOJ have committed to a very thorough and deep cleaning regime in all the courts to ensure the safest possible environment. They cannot, however, guarantee that there will be hand sanitiser in all courts but there will be soap, water and paper towels available. If you have your own hand sanitiser, you should take it if concerned.
- We have all heard rumours that the District Court will be closing next week. Do not believe these rumours. There is one source of truth and that is to be found on the websites of the Courts of New Zealand and the Ministry of Justice. We will also let you know if there is any official news. On this note, see the information below on the recent advisory from the Chief District Court Judge.
- The MOJ; Judges and Courts are working hard to look at all the legislation currently in force that will help them plan and manage the changes in how the Courts are run. If any legislative changes are needed the Steering Group will consult with the profession as soon as possible.
I have so appreciated hearing from you over this week – please keep talking to us and asking us questions and giving us your ideas. Stay safe everyone.
Ngā mihi nui
19 March 2020
Kia ora koutou,
I am commandeering a section of the NZBA website so that I can "talk" to members, share my thoughts and seek your views. This is a tough time for us all. Three months ago we were all continuing our lives, buying houses, cursing Christmas shopping and hoping for a good year in 2020. None of us pictured what is happening now and we all feel anxious and a lack of control.
Covid 19 is flooding our email inboxes. The other day the Golf Warehouse sent me a letter about what measures the golf fraternity is taking to contain Covid 19. This was a bit of a surprise as I don’t even play golf! However, one of our biggest assets in dealing with this epidemic is that we can communicate with each other and work together. I will be emailing you regularly to let you know what the NZBA is doing, thinking about and planning.
First the Courts – Yesterday I asked you for your comments on how things are going in the courts. The number of replies and the thought you had given to this topic shows that it is a major source of concern and anxiety. I passed on the major areas of concern to the steering committee, along with some excellent suggestions. Last night we all heard that jury trials are suspended. I am continuing to liaise with the judiciary on the other matters that you raised. Please keep your comments coming by emailing me.
Secondly- working from home. Many of us are going to have to move who working from home. We will experience technical difficulties (my Mac proved to be an issue with our remote Chambers systems – so frustrating).
Our tech gurus (aka Phillip Cornegé, Josh McBride and Felix Geiringer) have put together some information to help you through this process. They will be regularly updating this page and providing other advice. We have member benefit deals that might help you save money on equipment.
Preparation is key – and no don’t go out and buy loads of toilet paper but think about what you will need to work from home. Do you have your IT in place? Do you have a computer system that can enable you to work properly from home. For 9/10 of us, an ipad is not sufficient on its own. What about access to your document storage? Are your key documents accessible from home- as you really don’t want to have to bring all your files home?
The actual experience will be different for everyone. I need to overcome the impulse to tidy the house; watch the news and put the washing on before sitting down to work. Because our Secretariat has been doing this for some time, they tend to be much more disciplined and regular about starting work on time and not being distracted. I will have to up my game!
Third and most importantly your health. Follow the MOH guidelines for staying as well as you can and the sensible advice to eat well, sleep properly and exercise.
Lawyers, in general, are a social group and often derive energy and wellbeing from meeting each other. Coffee is the social lubricant of our society. Many people (like me) are going to struggle. So we have to think of other ways to stay in touch. Our Secretariat team often works a day or two from home, but yesterday they moved to work full-time from home. I am told that the hardest part was walking out the door and leaving behind the other people who work in their chambers. Don't underestimate this moment!
The NZBA team will tweet more and post on LinkedIn. You could follow the example of our Secretariat, which is setting up a virtual coffee group (on Zoom) and committing to meeting regularly! I am told that my PA will be joining this group. I am sure my invitation was held up in the mail...
Let’s not ignore the elephant in the room – financial difficulty. We don’t know how the legal profession will be impacted by this virus but it would be naïve to think we will not suffer a downturn in some way. Can I suggest that you talk to your bank if you think there are going to be problems? The CEO of the ASB was on the radio yesterday asking people to do this – saying they have a toolbox to assist people.
We also want you to talk to us. Let us know what problems you have. The NZLS have indicated that they will be reporting back on practising certificates and deferment of CPD. But the NZBA also wants to hear from you if you are experiencing financial difficulty and need help with CPD or subs. We want Covid 19 to go away and to keep you all as members!
Finally, please share your ideas for surviving this crisis. We are seeing the hashtag #weareallinthistogether. It is absolutely true. We are all in this together and have to survive as a community.
Ngā mihi nui